The stars and sparkles in the eyes of an engaged couple temporarily dissipates while discussing a marriage contract with their lawyer. Being forced to accept the very real possibility of divorce at this stage is not pleasant, but realistic with an internationally spiralling divorce rate. Although Graeme Greenstein, a Johannesburg based family law attorney, does not advocate divorce but does believe that it should be amicable if it is inevitable.
According to South African law, a divorce will be granted if one spouse can satisfy the court that the marriage has broken down irretrievably.
One of the three attitudes can be adopted by the other person when confronted with “ I want a divorce”:
- Accede to the request
- Attempt to save the marriage
- Oppose the decision with some anger.
In the same way one person alone is not responsible for the breakdown of a marriage, one person alone cannot save it. Unless there is a concerted effort by both parties, it serves little purpose to stand in the way of the initiator with a deepening resolve.
“At this stage, I see some clients getting angry and aggressive. No matter what the circumstances, revenge is never the ingredient needed to avoid an ugly divorce. As difficult as it may be at the time, adopting an attitude of casting personal differences aside can quickly bring the matter to finality with little trauma,” says Greenstein. The type of marriage contract decided upon in the starry-eyed stage now comes into effect. When negotiating a divorce, the way in which you are married will determine what you are entitled to, not a penny more and not a penny less. Seeking advice as to what that is becomes a starting point. A firm yet fair approach should be the objective of anyone (and their lawyer) going through a divorce. Unrealistic demands are not conducive for an amicable settlement. The bravado of “screwing him for every cent” is an unfortunate attitude, designed to keep both parties in court for years to come. What can one reasonably expect to claim in a divorce settlement? This can be best described by the courts. When children are involved, custody takes priority.
CUSTODY
The primary consideration when determining custody should be “what is in the child’s best interests?” The fact that you have been aggrieved or that your spouse is possibly committing adultery should be cast void in favour of this. Involving the children in smear campaigns causes confusion and hurt.
Parents must remember that by coming to an amicable solution, they can alleviate pain and suffering. Being able to objectively look at the best interests of your child without involving them increases the likelihood of arriving at a fair settlement. l am sometimes confronted with the situation where one parent wants custody “come what may”. Upon investigation, I find that this parent is out of town regularly or leads a lifestyle not conducive to being a custodian. This selfish, unobjective attitude does not serve the child’s best interest and should be kept away from the negotiation table. Non-custodians have apprehensions about the role they will play in their children’s lives. Every custodian should welcome a meaningful role between the non-custodian and child. Assurances about the non-custodian’s role should be made and documented. As long as a spirit of co-operation and objectivity prevails, the greater the possibility of avoiding an ugly divorce.
A fear of the non-custodian is desertion by the ex-spouse. The custodian must be aware of this fear and consent to a provision in the agreement giving the non-custodian notice of intention to leave an area. This will allow the parent time to approach the court if they feel it is not in the Childs best interest. As far as I am concerned, non-custodians should have liberal rights of access. Divorce agreements stipulate the minimum but if the parties are able to expand thereon, all is well for a happy for a happy post-divorce scenario.
Stubbornness and single-mindedness can easily derail the negotiation process. You could be left with a prolonged divorce, a diminished bank account and children needing psychological help.
Maintenance
Maintenance is determined according to the needs of the parties and their ability to earn. Since the custodian is the woman in most cases, the high cost of living needs to be taken into account. Mothers need to know they can be assured of an income that will adequately care for their children. Maintenance should never be limited to what the courts stipulate but, as much as possible, limited to what is within your means to provide for the child. It is advisable, however, to ensure that there are agreements on money required outside of the maintenance agreement e.g. an excess on the medical aid benefit. Adopt an open minded attitude and be aware of the trauma that children are exposed to during the breakup of a marriage. The more you give your child, the better. Timeous payment and budgeting of maintenance funds should never be an issue.
Should the non-custodian feel that the maintenance they are paying is not being spent on the children, divorce agreements can be structured to ensure that the non-custodian is responsible for fixed expenses directly related to the child e.g. school fees, books and uniforms. This limits the possibility of maintenance money being misused.
Life cover should not be ignored in a divorce settlement. It can happen that the mother has custody but the father is the major breadwinner. Legitimately so, a real concern of her’s would be loss of income should the father die. Offering to pay life insurance and nominating the children beneficiaries can alleviate this stress by providing for the children in the long-term. The long term benefits you will derive from this act will far exceed the monthly premiums.
ASSETS
The routine children so badly need is disrupted when they suddenly have two homes. For this reason, it is best to negotiate that furniture which is familiar to the children should follow the custodian. The resale value of these items is usually not enough to replace them in any case. For the balance, the easiest way to distribute it may be with the flip of a coin – each party choosing one item at a time. Things such as tumble-dryers and washing machines should go to the custodian who has to take care of the day-to-day laundry. A marriage contract can complicate the division of an estate. It remains a contractual issue. If you were married after 1984 by ante-nuptial contract without the inclusion of the accrual system, legally you are entitled to your estate and the other spouse is entitled to theirs. You cannot claim, in this instance, that you are being heard done by since the division of the estate was agreed upon choice initially.
You are entitled to not a penny more or less in terms of what you have chosen in your marriage contract. The divorce agreement is like a security blanket for men and women. Each wants to know that they are protected and have a certain degree of comfort. A women wants provision for the children and certain mechanisms can be put in place to ensure this. Most often, men want to know they will have a say in their children’s lives and upbringing. Both parties can reassure one another with simple undertakings which go a long way to alleviate many stresses and pressures. Removing these from the negotiations has untold positive effects on all parties, serving them well in years to come.
